Muhammed Basheer vs District Telecom Committee
2021 Latest Caselaw 1575 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

     FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942

                      WP(C).No.22770 OF 2020(U)


PETITIONERS:

      1        MUHAMMED BASHEER
               AGED 49 YEARS
               S/O.ADAM, MANTHIYIL HOUSE, VETTIKATHIRI (P.O.),
               NEDUMPURA, THRISSUR-679 531

      2        MUHAMMED SUBAIR
               AGED 49 YEARS
               S/O.MUHAMMED, KALLAZHIKUNDIL HOUSE,
               VETTIKATHIRI (P.O.), NEDUMPURA, THRISSUR-679 531

      3        SHAMSUDHEEN P.M.
               AGED 52 YEARS
               S/O.T.K.MUHAMMED, THONIKADAVIL HOUSE,
               VETTIKATHIRI (P.O.), NEDUMPURA,
               THRISSUR-679 531

               BY ADV. SRI.K.PRAVEEN KUMAR

RESPONDENTS:

      1        DISTRICT TELECOM COMMITTEE,
               THRISSUR, REPRESENTED BY ITS CHAIRMAN
               (DISTRICT COLLECTOR), COLLECTORATE,
               THRISSUR-680003

      2        THE VALLATHOL NAGAR GRAMA PANCHAYAT
               REPRESENTED BY ITS SECRETARY, VALLATHOL NAGAR,
               THRISSUR-679 531

      3        THE STATION HOUSE OFFICER
               VALLATHOL NAGAR POLICE STATION,
               THRISSUR-679 531

      4        RELIANCE JIO INFOCOM LTD.
               REP. BY CHIEF OPERATING OFFICER,
               32/2552-C, FIRST FLOOR, P.K. TOWER,
               NEAR YATHRI NIVAS, PALARIVATTOM, KOCHI-682025
 WP(C).No.22770 OF 2020(U)        2




      5      SAIDALI K.
             S/O.KUNHIBAVA, NO.443, SAFNA MANZIL,
             VETTIKATHIRI P.O., NEDUMPURA,
             THRISSUR-679 531.

      6      THE STATE OF KERALA
             REP.BY ITS CHIEF SECRETARY, SECRETARIAT,
             THIRUVANANTHAPURAM-695 001

             R2 BY ADV. SRI.P.C.SASIDHARAN
             R4 BY ADV. SRI.G.HARIKUMAR (GOPINATHAN NAIR)

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
15.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.22770 OF 2020(U)                3




                               JUDGMENT

The petitioners herein are residents of Nedumpura Village,

within the limits of Thalappilly Taluk in Thrissur District. They are

aggrieved by the erection of a mobile communication tower by the 4th

respondent, a telecom services provider, in the property owned by the

5th respondent comprised in Sy. No.14/1 of Nedumpara Village.

2. According to the petitioners, when they received information

about the erection of a tower in the property which lies adjacent to

their residential homes, they raised objections. The 1st respondent in

his capacity as the Chairman of the District Telecom Committee

convened a meeting. No proper notice was served on the petitioners as

the meeting was convened to consider the denial of permit by the

Panchayat. The DTC, without hearing the objectors, closed the

complaint directing the Panchayat to consider the application for permit

notwithstanding the objections raised by the nearby residents. It was

further directed that if objections are caused after the grant of permit,

the DTC can be approached. According to the petitioners, on the basis

of the above direction, the Panchayat proceeded to grant permit to the

4th respondent. Being aggrieved, they filed Ext.P3 representation

before the 1st respondent. Nothing happened later due to the

imposition of the lockdown. After a few months, on 15.7.2020, the

petitioners were invited for a virtual meeting. The 1st respondent,

without considering the legitimate grievances of the petitioners,

rejected the objections raised by them holding that the objections were

considered in the earlier meeting of the Telecom Committee. According

to the petitioners, Ext.P1 minutes of the meeting dated 3.10.2019 of

the DTC would reveal that the Committee had left open the

consideration of objection after the grant of permit by the Panchayat.

The petitioners assert that the decision taken by the 1st respondent is

unsustainable. They contend that an Anganwadi is functioning very

near to the tower and the area is very densely populated. They would

contend that the radiation which would emanate from the tower would

cause health hazards particularly to the senior citizens and minor

children who are residing nearby. It is contended that Ext.P1 order

passed by the 1st respondent is vitiated for total non-application of

mind and arbitrariness. It is in the afore circumstances that the

petitioners are before this Court seeking a direction to the respondents

1 to 4 to refrain from erecting a telecom tower on the strength of

Ext.P2 permit and for a further direction to the 1st respondent to grant

an opportunity of being heard the petitioners in the matter of erection

of tower.

3. The 2nd respondent has filed a counter. It is stated that

though the building permit sought for was originally rejected, pursuant

to Ext.P1 proceedings of the District Telecom Committee, permit was

reissued. It is further stated that there is no error or irregularity in

granting the permit.

4. The 4th respondent has filed a counter contending that when

the application for permit submitted by them was not considered by the

Panchayat, they had to approach the DTC. The DTC, by Ext.P1 order,

came to the conclusion that the Panchayat has no authority to refuse

building permit on the ground that there is a public outcry against

grant of permit for construction of a telecom tower. It is submitted that

notice to the objectors were issued by the 1st respondent but as is

evident from Ext.P1, the petitioners or any other objectors did not

appear. It is further stated that after grant of building permit, the

petitioners raised objections and the DTC convened a virtual meeting.

Finding that the 4th respondent had complied with all the requirements,

the DTC refused to interfere. According to the respondents, the only

grievance portrayed by the petitioners is about the health hazards from

possible radiation. They would contend that these aspects were

considered by this Court in a catena of decisions and it was found that

there are no materials either in the scientific sphere or in the medical

sphere to conclude that there would be health hazards from telecom

towers. According to the respondents, the radiation norms prescribed

by the Department of Telecom are very stringent and it requires that

the radiation should be 1/10th of the permissible radiation prescribed

by the International Commission on Non-Ionizing Radiation Protection

(ICNIRP), a body of independent scientific experts. The 4th respondent

would also refer to the fact sheet on the EMF Radiations from Mobile

Towers and it is stated that weak electromagnetic waves which

emanate from telecom towers do not cause any disruption to any form

of life. According to the respondents, due to the restrictions imposed

due to the pandemic most of the people are working from home and it

is the duty of the internet service providers to provide fast and

uninterrupted data. They would refer to Exts.R4(b) to (c) to bring

home the fact that specific directions have been issued to the service

providers to ensure operational continuity by erecting sufficient mobile

towers in the rural and remote areas. It is contended that none of the

contentions raised by the petitioners are sustainable.

5. I have heard Sri. Praveen Kumar, the learned counsel

appearing for the petitioners, Sri. P.C.Sasidharan, the learned counsel

appearing for the 2nd respondent and Sri. Harikumar G Nair, the

learned counsel appearing for the 4th respondent.

6. From the records it appears that by an interim order dated

27.10.2020, this Court had ordered that the commissioning of the

mobile communication tower shall only be with the leave of the court.

Later, by order dated 21.12.2020, this Court had ordered that if the

erection of the mobile tower is over, it can be commissioned, but the

same shall be subject to the outcome of this writ petition. It appears

that the 4th respondent has proceeded with the construction on the

strength of the order.

7. Coming back to the case on hand, the contentions advanced

by the petitioners are two-fold. The first contention is that the DTC has

failed to grant the petitioners an opportunity of being heard while

passing Ext.P1 and P4 orders. Their second contention is that the 4th

respondent was permitted to proceed with the construction

disregarding the fact that the tower was being erected in a thickly

populated area without taking note of the health hazards which is likely

to be caused to the children as well as the senior citizens of the area.

8. Insofar as the second contention is concerned, the matter is

no longer integra. A Division Bench of this Court in Indus Towers

Ltd. , Palarivattom v. Sub Inspector of Police, Thodupuzha and

Ors. [2014 (4) KLT 306] had occasion to consider the aspect of health

hazards and had held thus:

"18. The next question is whether the EMR causes any health hazard. This matter is no longer res integra on account of the judgment of the Full Bench in Essar Telecoms Infrastructure v. C.I. of Police, Angamaly, 2010 (2) KHC 445 : 2010 (2) KLT 762 : ILR 2010 (2) Ker. 592 and the judgment of the Division Bench in Essar's case (supra).

19. The learned counsel for the party respondents had relied upon a report of IIT Mumbai to substantiate the fact of health hazard on account of EMR. In the judgment reported in 2011(2) KLT 516, [2011 (2) KHC 171 : 2011 (2) KLJ 335], this Court has elaborately considered the entire material relating to health hazard including the report of IIT Mumbai, which is referred by learned counsel for party respondents and has come to the conclusion at paragraphs 38 and 39 as under:

38. Mobile phone works on Electromagnetic radiation. In the state of materials on record the radiation involved can safely be treated as non - ionizing. It does cause thermal effect. But the thermal effect produced is far too insignificant to constitute a perceptible health hazard provided the radiation is confined to internationally prescribed standards. Apparently, it is non - thermal effect which is engaging the attention of researchers all over the world. We have already noticed the concept of Electromagnetic Hypersensitivity.

39. There is an international body concerned with the effects of such radiation. The standards prescribed by the said body is sought be enforced by Government of India also. It is the view taken by the large number of scientific experts that radiation in conformity with the said standards have not been established to produce any health hazards as such. At any rate, we do not think that it is appropriate for this Court with the material as such on record alone to hold that the respondents have established that siting of the tower would pose a health hazard sufficient enough to warrant this Court to decline jurisdiction to grant police protection if the petitioners are otherwise entitled to the same. We must notice that we are not called upon to decide upon the question of health hazards emanating from the use of mobile phones and a distinction must be maintained between the use of mobile phones and the alleged dangers emanating from the operation of a mobile tower. Going by the materials, it does appear that there are international standards.

Radiation in deviation from the said standards is, in law, liable to be visited with serious consequences including stoppage of the operations. It is not established before us that these standards are being violated. We have to remind ourselves that the use of mobile phone is a modern day wonder and the contribution of technological advancement which has marked the twentieth century, in particular. Undoubtedly, its use is invaluable, not only to the individual as such, but to the Nation

itself, as it would be instrumental in bridging the communication gaps that isolate, otherwise inaccessible areas of the country. Its uses in a vast array of areas is so formidable that it can in one sense be treated as a priceless boon of science. It cannot be gainsaid that nothing comes without a price - tag and the resolution of every problem of this nature must be in the adoption of a balanced view. Needless to say, we do not mean that we have precluded the rights of the respondents to approach the Civil Court and seek relief against the petitioners by letting and producing materials as they are advised in which case necessarily the Civil Court shall decide the matter untrammelled by anything contained in this judgment."

20. The Full Bench of this Court in the first Essar's case observed that "In the instant cases, there is absolutely no question of any pollution and there is no pleading or proof as to any such instance and the only apprehension is with regard to the 'health hazards' likely to be created by the 'EMR'. As mentioned already, the Radio frequency waves are non - ionizing radiation, which cannot emit any electrons, unlike 'X rays' and that apart, no Scientific Committee Report has been procured or produced to controvert the findings rendered by the Division Bench in Reliance case, 2006 KHC 1492 : 2006 (4) KLT 695 : ILR 2006 (4) Ker. 357 : AIR 2007 Ker. 33."

21. Having regard to the aforesaid findings of the Full Bench as well as Division Bench, we do not think that with the available materials, it may not be possible for this

Court to appreciate the argument of counsel for the respondents that EMR from MT Towers used for mobile services would cause any health hazard.

9. In view of the observations above, the contention of the

petitioners that radiation from electric towers would cause health

hazards cannot be accepted.

10. The first contention is that in spite of directions issued by

this Court in Indus Towers Ltd. , Palarivattom (supra), the

petitioners were not heard by the DTC. Ext.P1 is the minutes of the

meeting held by the DTC on 3.10.2019. The minutes show that it was

the 4th respondent who had approached the DTC complaining that the

Panchayat was not issuing the building permit due to opposition from

the local people. The DTC served notice to the objectors but none

appeared. The DTC proceeded to hold that the Panchayat could not

have refused to grant the permit on the ground that there was

opposition from the residents of the area. The Secretary was ordered

to consider their application in tune with the provisions of the Kerala

Panchayat Building Rules and pass appropriate orders. However, it was

also mentioned that if any obstruction is caused after grant of permit

and during the construction stage, the aggrieved party can approach

the DTC. It is the case of the petitioners that it is on the strength of

the liberty so granted that they had approached the DTC raising

various contentions including the radiation aspect. The matter was

taken up by the DTC on 15.7.2020 in the virtual meeting. Ext.P4

minutes of the meeting reveals that the DTC refused to consider the

objections on the ground that those aspects were considered in the

earlier meeting held on 3.10.2019. The DTC proceeded to permit the

4th respondent to proceed with the construction and approach the

police in the event of any obstruction by the petitioners or the nearby

residents.

11. There is considerable merit in the submission of the learned

counsel appearing for the petitioners that an opportunity was denied

to them by the DTC. Maybe the aspects of radiation from Mobile

Telecommunication Towers have been held to be non-hazardous by

this Court. But that does not mean that the petitioners can be denied

an opportunity to raise their other contentions before the DTC. That

opportunity has been denied to the petitioners. Of course, the

construction has proceeded to the final stages. It is not known

whether the tower has been energized and is functioning. Having

considered all the aspects, I am of the view that the DTC will have to

hear the petitioners yet again and pass appropriate orders. As the

construction of the tower has been permitted by this Court, I am not

inclined to interfere with the same at this stage.

12. In that view of the matter, I direct the DTC, Thrissur, the 1st

respondent herein to reconsider Ext.P3 complaint lodged before the

committee and take a decision with notice to the petitioners as well as

the respondents 4 and 5, expeditiously, at any rate, within a period of

45 days from the date of production of a copy of this judgment.

This writ petition is disposed of.

Sd/-

RAJA VIJAYARAGHAVAN V

JUDGE

ps/18/1/2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE MEETING HELD ON 3/10/2019 BY THE 1ST RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT DATED 18/12/2019

EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 30/12/2019 SUBMITTED BY THE PETITIONERS BEFORE THE DISTRICT COLLECTOR

EXHIBIT P4 TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE MEETING HELD ON 15.7.2020

RESPONDENT'S/S EXHIBITS:

EXHIBIT R4 (a) TRUE COPY OF BUILDING PERMIT NO. A2-

BA(352472/2019 DATED 18.12.2019

EXHIBIT R4 (b) TRUE COPY OF CIRCULAR NO.DOT/KRL/6-

14/DM-CORR/2019-20 DATED 24.03.2020

EXHIBIT R4 (c) TRUE COPY OF CIRCULAR NO. AS-25/01/2019 OFFICE OF DIR (AS-V) DATED 21.03.2020

EXHIBIT R4 (d) TRUE COPY OF LETTER DATED 16.11.2020 ISSUED BY THE GOVERNMENT OF KERALA

EXHIBIT R4 (e) TRUE COPY OF JUDGMENT DATED 16.03.2020 IN WPC 33759 OF 2019 AND WPC 50 OF 2020 BY THIS HONOURABLE COURT.

//TRUE COPY//

P.A TO JUDGE